from the wow dept

We've written tons of stuff on the ridiculousness of statutory damages for copyright infringement -- which can put damages for a single infringement at up to $150,000 (for willful infringement). When you're talking about a $0.99 song, that seems completely out of line. The reason for statutory damages (supposedly) is that figuring out actual damages is simply too difficult, so a statutory range lets you ignore any discussion of having to prove real damages. In most copyright lawsuits, plaintiffs automatically take the statutory damages rates. It's pretty rare for anyone to opt-out. However, opting out is exactly what Oracle has done in its ongoing lawsuit against Google. And it did this despite the judge ridiculing the company for the decision. From Rachel King at ZDNet:

When Alsup heard Jacobs say this, he warned that if Oracle goes down this path, they might not win anything at all, adding that it is the “height of ridiculousness” to think that Oracle could claim “hundreds of millions” of dollars for nine lines of code.

In a later discussion on Friday morning, David Boies, also representing Oracle, tried to defend this strategy, arguing that the burden of proof is on Google here — not Oracle.

“What we are saying is once you proved infringement, we think under the law we have claim for infringer’s profit case,” Boies asserted.

The only thing I can figure here is that Oracle is doing this just to be a pest. Even if it does eventually win on the copyright issue (still an open question given the judge needing to rule on the copyrightability of APIs), it's not going to get that much money either way. The $150,000 statutory damages numbers are pocket change for either company, but as the judge made clear, in all likelihood it would get less (or nothing) if it tries to get "infringer's profits," because the contribution of the code in question is so minimal. However, it is possible that the fight over what those "profits" might be will simply prolong the case... and the expense of the case. So perhaps this is just a strategy by Oracle to drag things out? Maybe its lawyers are hoping that will make Google want to settle? Other than that, I'm with the judge in being a bit perplexed by the reasoning here.

They are hoping that no one notices.

What they are hoping is that the judge buys that the burden of proof falls on Google. This is far from the truth. Oracle has to tie the infringement to the profits Google makes to get anything. Normally that would be hard. But Oracle in the early stages of this lawsuit messed up not once but 3 times on a damage report and the report was tossed out. They have no evidence that ties the infringement to Google's profits. This is even harder because Google gives android away for free.
It isnt going to be hard for Oracle to get profits now, its going to be impossible.

Re: They are hoping that no one notices.

The burden of proof can fall on Google per 17 USC 504(b), which provides:

(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Of course, "attributable", given the breadth of Google's business, is a significant matter that may very well wend its way down to "zero", but that burden would reside with Google, and not Oracle. However, in the process of wending it down Google could very well be put into the uncomfortable position of having to lay its books of accounting open to Oracle...and I know of no company that relishes the prospect of full, financial disclosure.

Re: Re: They are hoping that no one notices.

Attributable still has to be proven by Oracle. Once they can prove what's attributable they then have to present proof of gross revenue (only for what's attributable). Then the burden falls on Google to prove expenses on the gross revenue to come up with net profit. It's a three step process, Oracle has two steps to prove before Google must do anything.

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You have to consider it a victory when you lose the ruling, as in the SCO case and your side has to pay costs on top of that. A spectacular victory that drove SCO into monetary bankruptcy to match their moral and technical bankruptcy. Even if the corpse hasn't stopped twitching.

As for actual damages, if Oracle can establish any, one of our AC's has pointed out the breadth of Google's business as one reason this may be almost impossible to do so I'll add another one which is the nearly equal breadth of Oracle's business. It's hard to imagine what if any profit some part of Google's business made from that and what part of Oracle's operations would have been impacted and to what degree.

Seems like the ideal place to "take the money and run" the shut up about it all. Perhaps Boies got infected with "SCOX Self Importance Complex Disease" from hanging around with Darryl McBride for so long.

Re: When The Guy Who’s Going To Rule On This ...

not that the player who immediately changes his mind with no consideration of the situation in response to that question is necessarily any better, mind you. (GMs love to randomize their bluffing... and double bluffing...)

This is the only way they can get the big money

Oracle hopes to confuse the jury into awarding a large payout. That is the reason for this strategy. It doesn't matter how weak their case actually is if they can present it as being something else to the jury.

Oracle Strategy?

If Oracle prevails in their copyright claims and gets big damages then Java is dead. Maybe they belatedly realized this and are trying to maneuver around it. That would let them claim copyrights over API and, in their tiny minds, not kill Java or require them to put the copyrights in the public domain—which would kill most of their case against Google. IMHO if the JAVA API is copyrighted and not in the Public domain I would never use JAVA!